Obamacare's day in court: A mandate for judicial restraint

In the infamous 1905 case of Lochner v. New York, a U.S. Supreme Court majority invalidated a “radical” social-welfare law Americans would today accept as commonplace – a law limiting the hours employees can work. Dissenting Justice Oliver Wendell Holmes memorably warned that “the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment” about constitutionality.

Holmes’ colleagues foolishly ignored his warning. To this day, judges who seem to mistake disagreement with the wisdom of a policy for its legal validity are roundly criticized for “Lochnerizing.”

Unfortunately, a majority of the current Supreme Court could repeat Lochner’s error, by confusing the novelty of Congress requiring most Americans to have health insurance or pay a tax penalty with the constitutional legitimacy of this mandate. Let us hope that a wiser sense of judicial discretion will prevail when the justices decide this crucial matter.

After all, what makes America’s venerable experiment of rule by elected representatives legitimate is political accountability through majority rule. And what makes it tolerable for unelected, non-politically accountable federal judges to periodically reverse the decisions of a determined majority is ongoing judicial restraint.

To avoid becoming a third political arena for interests that lost battles in Congress and the executive branch, federal judges should generally allow the policy wishes of a political majority to stand unless judicial intervention is necessary to avoid a clear violation of significant individual liberties not remediable through the regular political process. With respect, the challenge to the Patient Protection and Affordable Care Act’s “individual mandate” does not fit this criterion.

The first difficulty is that the right to economic self-determination trumpeted by mandate opponents does not rise in importance to the level of the individual liberties usually justifying judicial intervention. A right not to be forced to pay money or, less charitably, to be financially irresponsible while others bear the consequences pales compared to freedom of speech or avoiding discriminatory governmental treatment.

But even assuming the dignity of the right at stake, the unconstitutionality of the minimum-coverage provision is hardly self-evident.

In its operation, the provision offers most Americans a choice between having minimally adequate health insurance or paying a tax. Congress could have achieved the same basic result by imposing a “universal health care” tax and forgiving the tax (through a tax credit) for taxpayers who have minimum coverage. Current taxing-power doctrines provide no serious basis for objecting to a tax-and-forgive approach.

Only because health-insurance reformers wanted to avoid the dread “tax” word and instead imposed a regulatory “mandate” is the Patient Protection and Affordable Care Act subject to arguments under the federal commerce-regulation power. In an important sense, then, the constitutional attack on the individual mandate elevates form over substance.

And even under the modern understanding of the national commerce power it is far from clear that the minimum-coverage provision is unconstitutional. That’s why the majority of lower federal courts deciding the issue found the individual mandate valid.

Upholding the individual mandate need not mean broadly endorsing laws coercing Americans to make purchases and enter markets. Lower-court opinions and the arguments of supporters at the Supreme Court provide several important limiting principles.